SALT LAKE CITY, UT — In a ruling issued Friday, Utah Federal District Court Judge Dale Kimball held that the Utah Child Protection Registry (CPR) may remain in place pending trial in the Free Speech Coalition’s (FSC) lawsuit challenging the CPR.The case is Free Speech Coalition, Inc. v. Shurtleff, et al., No. 2:05CV949DAK.

In a press release issued Monday, the FSC called Judge Kimball’s ruling “a disappointing decision.”

“FSC is not content to let the CPR decision stand,” said FSC Executive Director Diane Duke in a written statement. “We have a number of avenues to consider, up to and including a victory in court – the COPA decision only helps to solidify our case.”

In a press release issued Friday, the office of the Utah Attorney General touted the judge’s ruling as a major win, despite the fact that Judge Kimball also denied a motion to dismiss the case entered by Unspam, the company that operates the CPR, and one of the defendants in the case.

“This initial ruling is a significant victory in Utah’s efforts to protect our children from smut peddlers who hide behind the First Amendment to try and hook our kids with their filth,” said Attorney General Mark Shurtleff in the statement issued Friday. “We will continue to vigorously defend the Utah Child Protection Registry, which is a powerful new tool the Utah legislature has provided to parents who don’t want unsolicited porn being sent to their children.”

In its lawsuit, the FSC raises constitutional challenges to the CPR under the Supremacy Clause, arguing that the CAN-SPAM Act preempts the CPR, asserts that the CPR violates the doctrine of the dormant Commerce Clause and contends that the CPR violates the First Amendment of the U.S. Constitution and Article I, Section 15 of the Utah Constitution.

In considering whether the CAN-SPAM Act preempts the Utah CPR, Judge Kimball states that “If Congress had intended to completely displace all state regulation of commercial email, it certainly could have done so in CAN-SPAM. It could have provided for no exceptions. But, it did not do so.”

Judge Kimball further reasons that Congress’ inclusion of a preemption exception for computer crimes “appears to be a recognition of the states’ traditional police powers.”

“The CPR is a valid exercise of Utah’s police power which is entitled to full presumptions against preemption,” Judge Kimball writes in his decision. “Plaintiff has, therefore, failed to meet its burden of demonstrating success on the merits with respect to preemption.”

Judge Kimball likewise was not persuaded by the FSC’s argument pertaining to the dormant Commerce Clause, saying that the claim “suffers an analytical flaw because Congress has expressly allowed states to regulate commercial email.”

“In the CAN-SPAM Act, Congress acknowledged that there were computer crimes that it could not properly regulate alone,” Judge Kimball writes. Citing Northeast Bancorp, Inc. v. Board of Governors, Kimball notes that “(w)hen Congress so chooses, state actions that it plainly authorizes are invulnerable to constitutional attack under the commerce clause.”

“The CPR does not discriminate between in-state and out-of-state senders,” observes Judge Kimball in his decision. “Even assuming that the dormant Commerce Clause would otherwise invalidate the CPR, CAN-SPAM evidences Congress’s consent to exempt such regulation from running awry of the Commerce Clause.”

Judge Kimball found that the fee charged by Unspam for filtering a sender’s email lists against the CPR is not burdensome, stating that the “small fee imposed to ‘scrub’ each name on Plaintiff’s list is not excessive. The cost to ‘scrub’ each email name is far less than if Plaintiff attempted to use traditional mail to send its message to the same number of recipients. Moreover, if Plaintiff’s list of recipients diminishes as a result of the CPR registry, its costs will also diminish over time.”

“In balancing these interests, the court finds that the fee charged for the scrubbing services is not an excessive burden in relation to the local benefits of enabling parents to protect their children from instant exposure to pornographic materials which is already illegal to send,” Judge Kimball states in his decision.

Judge Kimball also was not convinced that the FSC was likely to prevail on the basis that the CPR constitutes a prior restraint on free speech, stating that “the CPR involves no licensing or preclearance (sic)system, nor does it require speakers to obtain the permission of anyone prior to speaking or to provide the content of its intended expression.”

“The mere fact that a regulation requires that a party take some action in association with communicating a message does not transform the regulation into a prior restraint,” Judge Kimball asserts in his decision. “It is also the court’s understanding that the ‘scrubbing’ process is nearly instantaneous so there are no issues with delay. The facts in this case do not demonstrate a prior restraint on Plaintiff’s free speech rights.”

In further examining the FSC’s First Amendment claims, Judge Kimball cites the case FCC v. Pacifica Foundation, and notes that the court in Pacifica “recognized that to ‘say that one may avoid further offense by turning off the radio is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.’”

In his decision, Judge Kimball reasons that “unsolicited sexual email unquestionably raises the captive-audience problem” present in Pacifica.

“The digital mediums targeted in the CPR are used by all members of a family for a variety of different tasks,” Judge Kimball writes. “The fact that the CPR protects only captive audiences of minors whose parents have affirmatively opted them out of receiving such materials significantly undermines Plaintiff’s contention that the statute threatens the First Amendment rights of its members.”

In another similarity to the Pacifica case, the Judge Kimball notes that this case does not involve a total ban on Plaintiff’s emais.”

“The CPR sets up a Registry allowing parents to preclude emails to certain contact points accessible to children,” Judge Kimball notes “Unlike Sable [Sable
Communications of Ca. Inc v. FCC] which included a total ban for adults and children, the CPR allows adults to register contact points accessible to children. An adult in Utah could choose to receive Plaintiff’s emails on a personal email address or on a personal laptop, but opt-in to the Registry for a family email account or any email account accessible on a family computer. Obviously, because of the opt-in nature of the Registry, it also allows an adult in Utah not to participate with the Registry at all.”

While Judge Kimball denied the FSC motion for preliminary injunction, he also denied motions to dismiss and motions to strike portions of the FSC’s briefs and submissions in the case.

Noting that the defendants in the case “contend that there is a difference between prohibited by law from purchasing and prohibited by law from selling,” Judge Kimball reasons that certain actions on the part of the state of Utah have made it entirely clear that they do intend to enforce the law against members of the FSC.

“Defendants mailed a letter to many of Plaintiff’s members on November 7, 2005, stating that ‘[t]he Division has taken the position that the Child Protection Registry covers those that may send or provide content for sending commercial email that advertises: 1. an alcoholic beverage or product; 2. any form of tobacco; 3. pornographic materials; and 4. any product or services that is illegal in Utah . . . such as illegal drugs, prostitution, and gambling.’,” Kimball observes in his ruling. “This letter makes it clear that the State intends to enforce subsection (a) against Plaintiff’s members. Because of such intent, Plaintiff has standing to assert its members interests as to subsection (a) as much as subsection (b)…. Furthermore, Plaintiff alleges that it sends its own emails advertising conferences that minors could not lawfully attend. Accordingly, the State Defendants’ motion to dismiss is denied.”

According to the FSC’s Monday press release, the FSC has several options in continuing their challenge to the CPR, including “a request for reconsideration of the decision based on the COPA decision, an appeal of the injunction decision, and finally, a trial to determine the constitutionality of the law itself.”

“This new wave of outside businesses/registries making millions of dollars off of the industry in the guise of ‘child protection’ has got to stop,” the FSC states in its press release. “They are using fear and falsehoods to create legislation that does nothing more than line their pockets with industry dollars. FSC will continue to protect our members and to dispel the lies promulgated by these industry leeches.”

For the full text of Judge Kimball’s decision, see: http://attorneygeneral.utah.gov/PrRel/FreeSpeechCoalition_v_Shurtleff.pdf